Senate Dems demand meeting with Chief Justice Roberts, threaten legislative action over alleged ethics violations

 May 29, 2024

Democrats on the Senate Judiciary Committee, led by Chairman Dick Durbin (D-IL) and Oversight Subcommittee Chairman Sheldon Whitehouse (D-RI), have taken it upon themselves to act as hall monitors for the Supreme Court and its recently adopted Code of Conduct in terms of alleged ethics violations by conservative-leaning justices.

Now Durbin and Whitehouse have demanded a meeting with Chief Justice John Roberts and insisted he enforce the new Code, or else they will proceed with legislative efforts to push the chief justice aside with enforcement measures of their own, according to Courthouse News.

The impetus for the demands of the Democratic senators is allegations that Justice Samuel Alito flew certain flags with partisan associations, along with other alleged violations by Justice Clarence Thomas, and their insistence that the two jurists disqualify and recuse themselves from certain cases pending before the Supreme Court.

Demands for a meeting and enforcement actions

Last week, Chairmen Durbin and Whitehouse sent a letter to Chief Justice Roberts "regarding recent New York Times reports that an upside-down American flag was displayed in Justice Samuel Alito’s yard in January 2021 and another flag associated with the January 6th attack on the Capitol was flown at another of Justice Alito’s residences in the summer of 2023."

"For the following reasons, we urge you to immediately take appropriate steps to ensure that Justice Alito will recuse himself in any cases related to the 2020 presidential election and January 6th attack on the Capitol, including the question of former President Trump’s immunity from prosecution for his role in the events of January 6th in Trump v. United States," the senators continued.

"We also renew our call for the Supreme Court to adopt an enforceable code of conduct for justices," they added. "And we request a meeting with you as soon as possible, in your capacity as Chief Justice and as presiding officer of the Judicial Conference of the United States, to discuss additional steps to address the Supreme Court’s ethics crisis."

Justice Alito's flag displays

The two Democratic senators went on to assert that Justice Alito had "created an appearance of impropriety" and "reasonable doubt as to his impartiality" in violation of the Supreme Court's Code of Conduct by flying an upside-down U.S. flag, a common display of national distress, and a Revolutionary War-era "Appeal to Heaven" flag, both of which have long been embraced by various protest movements, including most recently the "Stop the Steal" movement that challenged the 2020 election results.

They further highlighted the Code of Conduct's prohibitions against appearances of impropriety, partiality, and partisan political activities, and wrote, "By displaying the upside-down and 'Appeal to Heaven' flags outside his homes, Justice Alito actively engaged in political activity, failed to avoid the appearance of impropriety, and failed to act in a manner that promotes public confidence in the impartiality of the judiciary."

"He also created reasonable doubt about his impartiality and his ability to fairly discharge his duties in cases related to the 2020 presidential election and January 6th attack on the Capitol. His recusal in these matters is both necessary and required," the senators continued.

"These displays at Justice Alito’s homes are not the only recent instances of a Supreme Court justice’s failure to avoid impropriety and the appearance of impropriety," the letter added. "Although together the Court and the Judicial Conference have the ability and responsibility to enforce ethics rules applicable to the justices, it remains unclear what actions -- if any -- the judiciary has taken in response to allegations and reporting on ethical misconduct by Supreme Court justices."

Threat of legislative intervention

Chairmen Durbin and Whitehouse weren't quite finished yet, though, as they proceeded to rehash other allegations of impropriety by Justice Alito and Justice Thomas and lamented the lack of any internal investigations or apparent consequences for the pair of conservative jurists.

"The Court’s Code of Conduct has failed to redress or prevent any of these ethics violations, largely because it contains no enforcement mechanism," they wrote. "Both the Court and the Judicial Conference appear to have failed to even investigate allegations of ethics violations by Supreme Court justices, much less provide any findings or sanctions."

"We therefore call for Justice Alito to recuse himself from certain proceedings as outlined above, renew our call for the Supreme Court to adopt an enforceable code of conduct for Supreme Court justices, and request a meeting with you as soon as possible," the Democratic senators added. "Until the Court and the Judicial Conference take meaningful action to address this ongoing ethical crisis, we will continue our efforts to enact legislation to resolve this crisis."

That threatened legislation includes a bill under consideration known as the Supreme Court Recusal, Ethics, and Transparency Act, which if enacted would violate the fundamental separation of powers between co-equal branches of the government by imposing the partisan will of Congress on the independent Supreme Court.

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